Premarital Agreement Act Summary

Not every jurisdiction in the United States recognizes premarital agreements. In those states and jurisdictions that do recognize premarital agreements in some form, the scope of such agreements and the extent of enforceability are not always so certain. Yet, with the increasing awareness among prospective marital partners of the need to settle issues of property and income between themselves before marriage, the need for adequate, valid premarital agreements grows. And, with the inherent mobility of us all, the need for a uniform law on agreements and their enforcement is patently apparent.

To meet the need, the National-Conference of Commissioners on Uniform State Laws promulgated the Uniform Premarital Agreement Act (UPAA) in 1983. A premarital agreement is defined in UPAA as "an agreement between spouses made in contemplation of marriage and to be effective upon marriage." Such agreements are valid if made in writing and signed by both parties. They are effective upon marriage and do not need consideration.

The scope of matters that prospective marital partners can settle by agreement is large. Included are the rights and obligations of both parties with respect to property, the right to conduct any known transaction concerning property, and the disposition of property at dissolution of the marriage, separation or death, as examples. UPAA is designed to permit people contemplating marriage to arrange for their property according to their exact desires, provided that the agreement is entered fairly and with full understanding of its contents.

The question of fairness is addressed in the enforcement provisions of UPAA. A premarital agreement is not enforceable if it is not entered voluntarily by the party against whom enforcement is sought. A spouse must fairly and reasonably disclose his or her property holdings and financial obligations if he or she wishes to enforce an agreement against the other spouse, unless there is a voluntary and express waiver of the other spouse's disclosure rights. If there is not adequate disclosure, however, actual knowledge by the other spouse at the time of agreement would still permit enforcement. Also, if disclosure is faulty, the agreement must be unconscionable, as well, to preclude enforcement. These rules require an agreement to be made in circumstances leading to fair and knowledgeable decisions.

A valid agreement that is made voluntarily and has met the tests for fair disclosure may still be set aside in one important instance. If the agreement affects spousal support at separation or dissolution of marriage, so that a spouse becomes eligible for welfare, a court may require spousal support to the extent necessary to take that spouse off welfare. This may be done even if abrogation of the exact terms of the agreement results. The policy reason is obvious. Agreements cannot be used to transfer private obligations onto public institutions.

The adoption of UPAA in any state or jurisdiction permits marital partners to enter into valid premarital agreements. The availability of these agreements encourages them to take their interests into account before marriage. The result should be better prepared marital partners and better marriages.